"It's an inexact science." We've heard that phrase often. But, how often have we heard it in reference to DNA? Usually, we hear it more in terms of how it identifies a particular suspect with astronomically-high odds, such as, 'one-in-a-million'. In other words, it must be him because mathematically, it couldn't possibly be anyone else.
I’m sure you all know by now that I don’t venture into scandals, per se, on this blog; except when they involve our area of examination: Technology, privacy, evidence and eDiscovery.
That said, I’ve certainly been following the messy Patreaus developments, becoming more and more interested in the Gmail connection to all of it. None of the initial stories answered my question; if a woman was allegedly being harassed by Paula Broadwell, why did they need to monitor her (Broadwell’s) Gmail account, since the victim would be the recipient of all of the emails, and have them in her possession? It suggested to me – and probably to some of you – that the harassing emails were probably being sent anonymously and had to be traced back to the source to specifically identify who was behind them (Broadwell).
This morning, we received confirmation. Naturally, the situation is going from bad to worse faster than you can say, “October surprise”, but for our purposes, the interesting link is the metadata (specifically rich location-data) gleaned from the victim’s inbox, which provided the trail back to Broadwell by linking her physical whereabouts to the devices that were the sources of the emails; which ultimately led back to Petraeus through clandestine emails in Broadwell’s – not his – inbox.
Got all that? Good. And what are the things that bother me (I refuse to utter the oft-annoying “raises questions”)?
What in the world is the Director of the CIA doing with a Gmail account?
If any of these messages were sent via mobile technology, why didn’t the sender disable GPS monitoring (recall my recent post about location-privacy)?
Apparently some of the correspondences between Broadwell and Petraeus were pretty racy. Did they really think it would remain private?
Considering both Petraeus and Broadwell apparently set up anonymous Gmail accounts specifically to facilitate carrying on their affair, it once again calls into question the very knowledge, training – and self-awareness – of those who we charge to protect this country and its secrets.
Simply put, if even Petraeus doesn’t get it, who the he** does???
…but I did promise to try to post more often. Isn't it a shame when work gets in the way of a good blog post? Having not posted anything this week, I wanted to let you know about two subjects I'm working on for you right now:
I'm also working on a comparison of scientific analyses in California courts versus other jurisdictions. I'd seen a few good articles floating around about using the Daubert analysis to support the implementation of predictive coding. Well, that's not going to help in the Golden State, where we follow the Kelly-Frye standard (aka the 'Kelly' standard). I'd had a lot of exposure to this during my days at the Los Angeles County District Attorney's Office. Ask me, sometime, about how my boss and I successfully used a "Sweet'N Low" packet to impeach the defense's scientific evidence in a criminal case, once. I suppose today, we would have called it the Splenda Gambit…
I won't post until I have the time to do the quality job you expect, so look for them a little ways down the road. In the meantime, enjoy your weekend!
In the "Be careful what you wish for!" category, first we had the Arab Spring, which was considered to be a positive development for the Middle East – in the West, anyway. Now we have the UK riots – and the reaction is entirely the opposite.
That's the problem with revolutions; perspective is skewed based on which side of them you're on.
What's more interesting to me is the difference between the vehicles of change. With the Arab Spring, it was Facebook, Twitter and YouTube. With the UK riots, it's Blackberry Messenger (as if Blackberry doesn't have enough public-relations issues right now, including losing yours truly as a customer).
What's driving this decision? Economics, for one (Blackberries are cheaper in that region) and secrecy (BBM is private). I don't want to belabor the point – people died in both riots – but we should endeavor to understand these issues.
If this were happening in the United States, we'd be arguing whether this was a Constitutional violation of the Brandenburg standard. And while we argued, the FBI would be accumulating electronic evidence.
You may consider yourself to be on the 'right' side of the revolution, but make no mistake; either way, someone is tracking you. This will make a big difference if, in the end, you find yourself on the 'wrong' side.
The last thing I want to do is harp on the Casey Anthony trial; more than is necessary to make my point, anyway. I only want to discuss one item; the verdict. Is there an eDiscovery connection? Yes, if you look at cases holistically and not by their parts. I see people get so wrapped up in the minutia of what we do, they forget that ultimately, this thing may go to trial!
Why's this important? Because you can be very successful at the eDiscovery portion – and still lose. If this case proved anything, it's that anyone who thinks they can handicap a jury is smoking crack. That goes for you, too, Nancy Grace!
One thing that always adds a wild-card to the deliberations – and this was clearly cited in one of the juror interviews – when the element of it being a capital case is added to the mix, individuals are reticent to be the ones to sign the death warrant, even if they're absolutely certain of guilt (and they weren't even close, here).
It's still a marathon to the finish line, but always bear in mind, eDiscovery is just a single watering-station.
When one thinks about acquiring forensic evidence in relation to a criminal rape charge, I doubt electronic evidence would normally be on the list of items sought. However, a hotel key card is likely to figure prominently in the prosecution of the now-former-IMF Chief, Dominique Strauss-Kahn. Is the theory set forth by the information gleaned from the key card likely to be convoluted? It seems likely, however, this serves as an appropriate reminder that eDiscovery is not just about civil cases.
Yes…I'm still here…and I'm about to clear out that backlog of interesting items I mentioned a few posts back. Funny how Osama bin Laden has already moved to the back pages – unless you're interested in 'his' porn collection.
If we learned one thing from 9/11, it was that we should cast a large net, but the webbing must be finite – lest the minnows pass through. For our purposes, 'minnow' is a metaphor for 'analog'. We expected machine guns…instead, we got box cutters. We expected a sophisticated digital network of operatives…instead, we got bin Laden writing up some text, copying it onto a flash drive, then a courier cutting & pasting it into an email message at a remote location.
Just something to keep in mind the next time you're collecting digital evidence. Don't jump the shark while overlooking the minnow.
Recently-former-Senator John Ensign's (R-NV) affair and alleged attempts to cover it up would normally be fodder for the press – and I'd take little notice of it. However, with the release of the Senate Ethics Committee Panel report, we find this:
"The report also accuses Ensign of deleting documents and files the committee was likely to request. The senator deleted the contents of a personal email account after the investigation was launched, it says." [italics added]
"The committee's report describes Cynthia Hampton as running up $1,000 in phone bills by texting Ensign while he was traveling in Iraq with a congressional delegation."
I want to distinguish between the first quote and the second. The former is clearly in the realm of relevance (save for an attempted-but-likely-futile privilege argument against access to his personal email account), but the latter is an example of how 'beside-the-point' ESI becomes relevant. The affair may be morally wrong, but texts between the two players are private – or at least they would be, except for the likelihood that access to them might lead to relevant evidence that would tend to prove or disprove a material fact. Examples? Did they conspire to cover up the affair through means that would be deemed improper? Plus, who paid the phone bill?
This is how your personal cell, PDA or email account ends up in the hands of your adversaries. You're not immune.
What do you think the odds are that Sen. Ensign knew, or should have known that destroying evidence after learning of an investigation is at best sanctionable conduct and at worst, a crime?
This is how destruction turns into obstruction. Time to call "Aunt Judy"…or Judge Judy…
If you'll forgive me my lack of time today, I'd like to link you to a New York Times examination of the case, Skyhook Wireless v. Google (or as I like to call it, the "Jabbar" case). The reason I'm singling this out is, if you follow the story, you'll see a great example of how seemingly innocuous statements contained in email messages, laid end-to-end, balloon into something much bigger.
Oh, and if somebody sends you an email – and you feel it would be more appropriate to continue the discussion off-line – walk by their office (if possible) or pick up the phone. Don't email them back, "PLEASE DO NOT! Thread-kill and talk to me off-line with any questions".
If I saw that in document review, where do you think I'd start digging?
I've just been informed – by someone who I refuse to reveal – that Donald Trump has dispatched a team of private detectives to California to examine my birth records. Worse, I'm told he can't believe what he's finding! So, even I know when the jig is up. It's time for me to come clean. I'm a Canadian-based plant, sent here to infiltrate your society. The election going on up North yesterday? I did that (I also pre-determined the outcome). You're a fan of bacon, maple syrup and you say 'eh?' a little too much? It's not Vermont – and you're not hard of hearing. It's me.
I know I've told you I'm an American citizen, but how can that be possible under the following facts?
I was born in Northern California.
Both, not just one, of my parents is/was a citizen of Canada and neither is/was a dual-citizen.
The first three digits of my social security number were issued from a state in which I've neither set foot, nor ever had a mailing address.
Furthermore, I wasn't even living in the United States when I legally-procured my social security number.
I didn't have a copy of my birth certificate, so I wrote to the State of California to request one – and was sent a short-form "Certified Abstract of Birth", which I then used to request my social security number.
No religion or hospital information is listed on the short-form.
Yet, these are the additional facts: I am an American citizen. I have a valid social security number. And – what makes my mother most proud – I can be President of the United States; notwithstanding the pesky requirement that I must somehow convince people to vote for me.
Why do I bring this up? Because the juror at your next trial might be a birther or a truther. And before anybody takes offense, I'm using those terms in their broad sense; just as many people were willing to believe that George W. Bush had advance knowledge of the 9/11 attacks. Quite an interesting time to be discussing it with the recent death of bin Laden.
This is a mindset; conclusion-based thinking. Like it or not, pre-conceived bias affects judgment. "I've decided what I want to believe, now I'll allow in all facts in support of that belief while filtering out all those that oppose it".
Do you think that might be why, in a jury trial, attorneys concentrate on demonizing an opponent through hearsay and innuendo? Oh sure, the opposition objects, but once the jury has heard it, it's too late. They're already deciding whether it's plausible. The attorney knows that if he or she succeeds, they've accomplished the following goal:
Filter / On
At least that's what somebody told me…
An IT Executive Turned California eDiscovery & Litigation Attorney and Consultant Shares his Personal Insights.